Times are changing, but procedural formalism in the jurisprudence of Polish courts holds firm. The most recent example of this is the resolution of the Supreme Court of 6 October 2022 (III CZP 112/22). The Supreme Court answered the question of whether a decision issued in a closed session is an existing ruling in a situation where it included a brief overview of key grounds for the decision (Article 357 § 5 of the Code of Civil Procedure (CCP)), but the operative part was missing a signature directly below it, whereas the signature followed the text of the document as a whole.
In other words, the decision was made with a short note explaining the reasons for the adjudication and the signature was affixed at the end. Thus, in practice, it was all about the place where the signature was affixed to the document of the decision.
The Supreme Court held that such a decision is a non-existent ruling. It is not clear from the resolution whether there should be one signature (only under the operative part) or two signatures (under the operative part and under the note). This is something we will find out from the statement of reasons (yet to be issued), or perhaps only from the next resolution, on the occasion of a reverse configuration.
This is not a new issue, as the Supreme Court has already expressed similar, extremely formalistic views before. For example, in its resolution of 13 March 2002 (III CZP 12/02), the Supreme Court considered as non-existent a decision on the merits (non-contentious proceedings) that was signed only below the statement of reasons, and in its resolution of 7 February 2003 (III CZP 94/02) it did so in respect of an “equally wrong” signature on an interlocutory decision. In the latter case, the Supreme Court preferred formalism over the literal wording of Article 358 CCP, from which it follows that a decision made in closed session binds the court from the moment it is signed together with a statement of reasons (…).The Supreme Court held that the drafting of the operative part and the drafting of the statement of reasons are separate procedural acts and, as such, each of them must be signed independently. “Together with a statement of reasons”, in the opinion of the Supreme Court, means only that both acts must be given a signature at the same time.
This argument is not convincing. Suffice it to note that the operative part of a ruling itself often consists of paragraphs resolving separate issues (e.g. refusal to reject the claim for formal reasons and transfer of the case to another court, or discontinuance of proceedings and costs). Undoubtedly, the resolution of each of the issues is a separate procedural act, and yet in practice the courts do not sign each paragraph of the operative part separately.
The Code of Civil Procedure does not contain provisions which prescribe that a signature must be placed directly under the operative part (or statement of reasons). The CCP does not regulate the way of signing procedural statements at all. Moreover, the Civil Code does not specify that with regard to declarations of intent either. In civil-law cases, it is traditionally accepted that the signature should be affixed below the text of the document and it refers to the entire text above it.
Thus, the view that the adjudicating panel cannot sign at the end of the document of decision drawn up together with a statement of reasons is not supported by any legislation. At the same time, it is difficult to find any rational reason why this or any other signature technique should cause such drastic consequences as non-existence of the court ruling.
The legal question in Case III CZP 112/22 offered an opportunity to somewhat alleviate this incomprehensible formalism. An even better opportunity, as it was not even about the statement of reasons, but about the new quasi-explanation under Article 357 § 5 CCP introduced with the last “great” amendment of the Code of Civil Procedure (which entered into force on 7 November 2019). Pursuant to this provision, when issuing a decision, the court may briefly indicate the key grounds for the decision if, having regard to the circumstances of the case, it considers that this will make the proceedings more efficient. The explanation is usually a few sentences long, it does not replace a statement of reasons and it does not exempt from the obligation to apply for one. The new concept has itself been a source of doubt in practice (among others, whether the key grounds should be signed at all, it has also sometimes been confused with an “ordinary” statement of reasons). Nota bene the draft of the next “corrective” amendment of the CCP (received by the Sejm at the end of September, Paper no. 2650) provides that in appealable decisions, the key grounds for the decision will be included in the operative part. The grounds will no longer be confused with a statement of reasons, but the term “operative part” will acquire a new meaning (but this is a topic for another occasion).
The Supreme Court could therefore have easily softened its previous position, rather than sticking to it and defending the de facto astonishing thesis that, by signing at the end of the document, the court did not sign the text placed at the beginning of the document.
One could say, at least the judges themselves have now the opportunity to see what formalism is (attorneys can find it out on a regular basis). After all, it was the judges’ procedural act that the Supreme Court considered so defective as to be non-existent. However, behind every such ruling, there is ultimately the case of a particular person who either is not afforded protection or is afforded protection late. Therefore, those who will ultimately suffer from excessive formalism will always be the clients of the justice system anyway.
If we were to apply the logic of non-existent decisions to the procedural acts of the parties, we would have to ask whether the parties’ submissions should also be signed in three separate places. Under the relief sought, under the reasoning and finally under the list of attachments. That these concerns are not unfounded and formalism has not said its last word in our procedure, is clear from another idea from the already mentioned “corrective amendment” of the CCP. A new wording of Article 1281 of the CCP is being drafted, and with it a postulate is put forward that statements and motions regarding evidence from professional attorneys which are placed only in the reasoning of a submission should not have any effect. In other words, that motions placed in the “wrong” part of the document should be “non-existent motions”.
